NAGW & Ors v MIMIA

The applicants, NAGW and others, sought judicial review of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The dispute concerned the Minister's refusal to grant the applicants, who were of Indigenous Australian descent, a visa to enter Australia. The applicants claimed they were entitled to enter Australia as of right, based on their Indigenous heritage. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the applicants, by virtue of their Indigenous Australian descent, possessed an inherent right to enter and remain in Australia that was not subject to the ordinary immigration laws of the Commonwealth. This involved an examination of the nature and extent of any such rights, particularly in light of the Australian Constitution and subsequent legislation.

The Court considered the historical context of Indigenous Australians and their relationship with the land, as well as the legal framework governing immigration. It was held that while Indigenous Australians have a unique connection to the continent, this connection did not confer an unfettered right to enter or remain in Australia that superseded the legislative power of the Commonwealth Parliament to regulate immigration. The Court found that the Migration Act 1958 (Cth) and associated regulations applied to all persons seeking to enter Australia, including Indigenous Australians, unless specifically exempted by Parliament. The applicants' claim that they were entitled to enter as of right was therefore rejected.